Tuesday, January 10, 2012

Loss of consortium claims for same sex domestic partner?

In a short opinion released last month the Connecticut Appellate Court considered whether to recognize a claim for loss of consortium for a same sex domestic partner.The case is called Mueller v. Tepler and it is available here.

As the court explains in the opinion, its decision is based on a previous case called Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d 914 (1991), in which the state's Supreme Court held that a claim for loss of consortium cannot be maintained when the plaintiff was not married to the victim at the time the underlying tort occurred. In that case, the plaintiff was engaged to the victim and they were living together. Yet, the court held that a formal marriage relation "forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance." Thus, it concluded that there is simply no right to a cause of action for loss of consortium if the injury occurred prior to the marriage of the parties.’’

In Mueller v Tepler, the plaintiff argued that the court should not follow this precedent because she would have been married to the victim at the time of the underlying tort had it not been for what the court referred to as "the unconstitutional deprivation of her right to do so."

Having set the stage so nicely for an interesting, and definitely valid, question, the court then avoided it by stating that "even if we were to assume that a complaint that includes such an allegation states a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004."

That's weak. So the plaintiff did not use the magic words "If state law had allowed it at the time, I would have married my partner before her injury" but so what? The important issue was whether marriage should be the deciding factor to determine whether the plaintiff has in fact suffered the injury we know as "loss of consortium."

I admit I don't know what the law is on this issue in other jurisdictions, but now I am curious to find out.